All
three lawsuits have provoked sharp debate—debate about constitutional purpose,
divided loyalties, and national security; debate in relation to threshold legal
questions such as standing (qua
harm), standing (qua redressability),
political question doctrine, and justiciability; and also debate in regard to more
merits related issues, including whether business transactions and regulatory
benefits are “emoluments,” and whether the presidency falls under the scope of
the Foreign Emoluments Clause’s office of
profit or trust under the United States language. U.S. Const. art. I,
§ 9, cl. 8.

Until
now, commentators, including those in the media and academic experts on federal
courts, have refrained from discussing one obvious legal defect—a defect common
to all three lawsuits. All three lawsuits have been brought against Donald J.
Trump “in his official capacity as President of the United States of America.” It
is likely that all three cases will founder on this issue.

In
an official-capacity claim, the relief sought is only nominally against the
official and in fact is against the official’s office and thus the sovereign
itself. This is why, when officials sued in their official capacities leave
office, their successors automatically
assume their role in the litigation. The real party in interest is the
government entity, not the named official.

Id. at 1291
(citations omitted) (emphasis added). In the event of President Trump’s
removal, death, resignation, or inability, Trump would be succeeded by Vice
President Mike Pence. U.S. Const. art. II, § 1,
cl. 6.
In those circumstances, the three Foreign Emoluments Clause lawsuits could not
be maintained against Pence. None of these cases involve government or public policy;
rather, they all involve Trump’s private
commercial ventures and investments. Thus per Lewis v. Clarke, not one of these cases is properly an official
capacity lawsuit, and each must be dismissed unless plaintiffs’ complaints were
significantly amended.

As
for the remaining two lawsuits, those plaintiffs can file amended complaints
and bring their constitutional claims against Trump in an “individual” (as
opposed to an “official”) capacity. That would make more sense as a procedural
matter, but such an individual capacity claim seeking injunctive relief would
pose other, perhaps even more difficult challenges for these plaintiffs to
overcome. To bring an individual capacity action against the President, plaintiffs
would have to argue that their lawsuit is supported by an implied
constitutional cause of action. There is simply no case law suggesting any such
implied cause of action exists, particularly where the Foreign Gifts and Decorations Act
(1966)
appears to occupy the field.

To
put it another way, if an implied constitutional cause of action under the
Foreign Emoluments Clause (U.S. Const. art. I,
§ 9, cl. 8)
or the Presidential Emoluments Clause (U.S. Const. art. II,
§ 1, cl. 7)
had even an outside chance of being “discovered” or upheld by the federal
courts, surely the CREW v. Trump plaintiffs
would have pled their case as an official capacity case and as an individual capacity case in the alternative. One cannot
blithely assume that CREW v. Trump plaintiffs
simply overlooked the possibility of bringing their causes of action as an
individual capacity lawsuit. After all, their complaint is signed by no fewer
than 16 litigators, including 3 full time law school academics—one of whom has
written the leading text on federal courts. See Dean Erwin Chemerinsky, Federal
Jurisdiction (7th ed. 2016). One can only surmise that the CREW v. Trump plaintiffs did not plead
in the alternative because an individual capacity suit would not be the slam
dunk, strong lawsuit that they have continually promised their supporters.
Instead, it would be a wholly novel claim which is not likely to survive either academic or judicial scrutiny.

Tuesday, August 08, 2017

Undoubtedly, Myers is cranky and curmudgeonly, and infuriating and idiosyncratic. He is also, at times, brutally honest (in the sense of describing the world as he sees it), offensive, rude, and maybe, just maybe—occasionally mean. But he is not an anti-Semite. And when you and your organization support that charge, even loosely, when you know it is not warranted, you will find that you have watered the charge of anti-Semitism down into a meaningless talking point when you try to assert it against genuine dangerous and violent anti-Semites (who, I am sorry to say, actually exist in your country [the U.K.]). It might make you uncomfortable to stand with Myers because he is not a modern politically correct saint, but that is (in my view) your job, else the allegation of anti-Semitism becomes a sham.

Message body

There is real anti-Semitism in the UK, including real physical dangers and actual exclusion of Jews from public places, meetings, and clubs, including political clubs. Such things are entirely (or almost entirely) unknown in the Republic of Ireland. You have enough to do in your own country, without looking to expand your remit here.

Moreover, Kevin Myers is entirely innocent of the wholly fabricated charge of anti-Semitism. He is, at most, guilty of being idiosyncratic, cranky, and curmudgeonly. He has been a consistent and long term friend of the Irish Jewish community, which--quite courageously--rallied to his support in spite of a social media mob.

Dreyfus was a victim of false charges. So is Myers. Those who remain silent on this will not be remembered well.

Sunday, July 23, 2017

Over at Instapundit Ed Driscoll asks why Congress isn't getting more done. The GOP holds the presidency, the House and the Senate (although the Senate only by a very thin 2-vote margin). So, why isn't there more legislative action? I propose a four-part explanation for why Congress wasn't ramped up and reading to go with a set of reform bills once President Trump was sworn into office:Why weren't the bills lined up and ready to go? Three reasons: expectations, time, focus and desire. Expectations: because the GOP establishment/insiders/leadership thought Trump would lose and didn't want to waste the time to put together a positive legislative agenda when their strategy was going to be more meaningless repeal votes and jamming legislative action on what they thought would be President HRC's agenda.Time: it takes months and months to draft a significant piece of legislation, and years to put together a thoughtful sequence of legislative pieces that work together to advance a coherent agenda. Trump's economic agenda, whatever its inadequacies, is coherent: defend American markets from overburdensome taxation, regulation and trade policies. Now, he might be all wrong about how to do that -- he might be completely wrong about the nature of the problems facing the American economy. But his agenda, given its assumptions, is coherent. Legislatively crafting that agenda -- coordinating all the moving parts -- to get it done in the first 100 days or even the first 1000 days would have required the legislative drafting to begin at least a year or two prior to the election. Nobody was thinking that far ahead at that point, not Trump, and certainly not the GOP establishment/insiders/leadership.Focus: Trump's team has been distracted since he won the election, both by the breadth of what it is working on and by the media assault that it is under 24/7. Reagan understood, when he came into office, that even if he was a 2 term president he would only really get 4 or 5 things done. So, he focused like a laser beam on those 4 or 5 things: tax cuts/reform, regulatory reform, putting the Soviet Union on the read to extinction, SDI (arguably a sub-set of his Soviet policy), and getting better judges appointed to the judiciary. And even Reagan's success on those 4 or 5 things was mixed (cough, Justice O'Conner, cough, Justice Kennedy, cough). When Reagan got distracted, bad things happened (Lebanon, Iran-Contra, the illegal immigrant amnesty). The point being, Reagan wanted to fix 1000 things and had to settle for ... addressing 4 or 5 things. Trump wants to fix 1000 things and is trying to fix 1000 things. He needs to prioritize. When he does (Gorsuch, regulatory reform) he gets results. When he doesn't (everything else), he stalls.Desire: the GOP establishment very much wants Trump to fail. Mosts of those folks are part of the open borders-free trade globalization elite that very much would like to see the United States become more fully integrated into trans-national trading blocs -- at the cost of the nation's sovereignty and the prosperity of most of our people. Trump's campaign and administration thus far have been a solid repudiation of the globalization ethos. Trump is an American nationalist, as his inaugural address made clear. The GOP congressional leadership and the people who run the party are ... not.

We
have a free speech problem in America. I have talked about it before. It starts
with the judiciary. See Seth Barrett Tillman, This Is What Is Wrong with the
American Judiciary, The New Reform
Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. But the wider
legal community has embraced the same legal philosophy. They want you to shut
up, and if you don’t shut up, there is always punishment. Here is an example.

[First,] [t]he President resents
Jeff Sessions’s decision to recuse himself and says that he would not
have nominated an attorney general who intended to follow the recusal rules in
this case. [Second,] [the President] also doubts that he can trust Deputy
Attorney General Rod Rosenstein, because he was US Attorney in a city,
Baltimore, that is Democratic in its voting pattern. In neither case does the
[P]resident seem to appreciate, or be moved by, the conception of
professionalism, including independence and impartiality of judgment. And, of
course, Trump’s continued emphasis on the supreme importance
to him of loyal subordinates in the ranks of law enforcement will not serve him
well as prosecutors form a picture of him in evaluating evidence of
obstruction.[1]

Let’s
take these claims one at a time. “[T]he President resents Jeff Sessions’s
decision to recuse himself and says that he would not have nominated an
attorney general who intended to follow the recusal rules in this case.” First, Bob Bauer does not quote the President saying any such thing. What Bauer means is whatever the President said, this is what
his words really mean. The second thing to note is the event at issue is one
which happened in the past—it is not something which is happening now or is yet
to happen; rather, it relates to Trump’s opinion as to a past event and how,
hypothetically, he would have done it differently. So what is the problem? Trump, according to Bauer, resents Sessions’s decsion. Is that view illegal? Is it a
threat or a promise to do something illegal in the future? Bauer’s view amounts
to this: the President holds the wrong opinion as to a past event.

Now
look at Bauer’s second claim: “[The President] also doubts that he can trust
Deputy Attorney General Rod Rosenstein because he was US Attorny in a city…that
is Democratic in its voting pattern.” Now maybe the President is wrong about
this, or maybe he is right. Let’s say the better view is (as Bauer suggests)
that the President’s view is the wrong view about DAG Rosenstein. The President did not say
Rosenstein is a crook or that if Rosenstein does the same thing again, he will be jailed. The
President merely expressed (according to Bauer) doubts. Is that view
illegal? Is it a threat or a promise to do something illegal in the future?
Again, Bauer’s view amounts to this: the President holds the wrong opinion as
to past events.

In
neither situation does Bauer suggest that the President is lying. Bauer does
not suggest that the views expressed by the President are anything but what the
President actually believes. In other words, part of Bauer’s criticism is that
the President is telling the truth (at least, as the President sees it). In
neither situation does Bauer suggest that it is a good thing for this or any president to
express his views forthrightly to the nation’s citizens about how he sees the
world. Indeed, another element of Bauer’s overall critique is that the
President is not listening to his legal advisers who have told the President (or
who should have told the President) to shut up. Instead, the President refuses to
listen to his advisers, and he keeps communicating with the public, i.e., telling
the public precisely what he thinks about the issues of the day. Has Bauer
considered the possibility that a good segment of the voting public likes the
President’s honesty (even if they also disagree with his substantive views)? Perhaps this is why Trump won, and why HRC
lost?

OK.
So much for Trump. Bauer thinks Trump has the wrong opinions about things that
happened in the past and in regard to hypothetical events. Trump has the wrong resentments
and the wrong doubts. So what should right-thinking people believe? Now Bauer
tells us: we ought “to appreciate, or be moved by, the conception of [Department
of Justice] professionalism . . . independence and impartiality.” Bauer cannot
be telling us that Trump ought to appreciate these values as things in
themselves. Rather, it only makes sense for Bauer to criticize Trump on these
grounds if in fact the DOJ is professional, independent, and impartial. I
suppose it might be, and if Bauer ended here we could agree or not with Bauer’sview here based on what we know about the DOJ’s past and current behavior. But
Bauer does not end here. Rather, Bauer concludes with: “Trump’s continued emphasis
on the supreme importance to him of loyal subordinates in the ranks of law
enforcement will not serve him well as prosecutors form a picture of him in
evaluating evidence of obstruction.” Now isn’t this the most extraordinary admission?
Isn’t Bauer telling us that if you have the wrong opinions, if you have the wrong resentments,
and the wrong doubts,
and if you have the wrong (I kid you not) emphasis, then the likelihood of the
DOJ’s prosecuting you will meaningfully increase? And if that is the measure of
DOJ professionalism, independence, and impartiality, if those virtues are not
to be found when the DOJ exercises its prosecutorial discretion, then isn’t Trump 100%
correct in demanding loyalty?

Bauer
describes a prosecutorial regime where free speech is not protected or even valued. His
criticism of Trump is that Trump will not kowtow to the bullies and to his
legal advisers (i.e., people like Bauer) who urge him to submit to the
bullying. Does it even dawn on Bauer that maybe, just maybe, Trump ought to be praised for trying to reclaim America’s free
speech tradition? Is it possible that thousands of voters, sensing the decline of our free speech tradition, voted for Trump for precisely this reason? And perhaps that is why Trump won several close states, if not the election, and why HRC lost?

This
is a dangerous and divisive game that Bauer and the President’s opponents are
playing. Bauer finds it perfectly normal, if not archetypically professional, for
the prosecutorial arm of the government to mobilize itself against a citizen
(here, the President!) for nothing more than expressing opinions about past public
political events and for having the wrong resentments, the wrong doubts, and the wrong emphasis. Again: the wrong emphasis! Bauer’s sad comment on our ‘justice’ system and professionals fills me with “foreboding.” “That
tragic and intractable [totalitarian] phenomenon,” which we see with horror in
former Soviet Bloc countries, Third World dictatorships and, more recently,
among the most politically correct members of the European project, “is coming
upon us” in the United States “by our own volition and our own neglect.” It
will be of European dimensions before we realize the full scope of the
transformation in American free speech mores and law. “Indeed, [the
transformation] has all but come.”[2]

[2] Address to
the Annual General Meeting of the West Midlands Area Conservative Political
Centre (Birmingham, Midland Hotel 1968). My blog post’s last paragraph has
drawn freely from the language and imagery used in the Birmingham speech,
although that speech was on an entirely different subject matter.

p.3
n.22: “Self-love seems to be central to the personality of the 45th President
of the United States.” Modern academic scholarship.

p.6:
“When President Obama was awarded the Nobel Prize for Peace, he sought and
received permission from Congress.” How is it possible to write on the Foreign
Emoluments Clause and make a claim like this absent any citation?

p.20:
“The notion that the [Foreign] Emoluments Clause was directed only toward quid pro quo exchanges does not
withstand historical scrutiny.” No citation is provided indicating that
anyone has suggested that the Foreign Emoluments Clause was limited to quid
pro quo exchanges. Quite the opposite: The
Foreign Emoluments Clause extends to “present[s];” so no exchange of any sort is
necessary to implicate the clause.

p.21:
“It’s possible that a key segment of voters in the U.S. 2016 electorate
confused power and wealth with virtue and talent.” No sources. This sort of contempt for ordinary voters is what drives people to vote for Trump. Keep writing this way: You
will get more Trump.

But
truly the best part of this article, is its willingness to engage contrary
authority.

On Friday, President Trump will celebrate Bastille Day in Paris to reaffirm“America’s strong ties of friendship with France.” More than two centuries ago, the storming of the Bastille was commemorated when the Marquis de Lafayette, then a French government official, gave President George Washington the main key to the demolished fortress — a gift Washington kept without asking for Congress’s permission. Indeed, other early presidents followed this tradition of accepting gifts from other nations without ever seeking congressional consent.

This practice is one that Mr. Trump’s legal adversaries ignore as they attempt to redefine the meaning of the Constitution’s Foreign Emoluments Clause. Federal courts should not allow them to create a new legal restriction on the president’s conduct.

....

The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.

Seth Barrett Tillman, New York Times Opinion Editorial: Yes, Trump Can Accept Gifts, New Reform Club (July 13, 2017), http://tinyurl.com/yba5zatc

Tuesday, July 11, 2017

Chong: “At the heart
of the emoluments controversy is President Trump’s refusal to liquidate
his business holdings. . . . And just as critically, are future presidents
entitled to pull a Trump—or does the Constitution dictate that they, like Jimmy
Carter, must sell their family peanut farms as a condition of taking office?”
(emphasis added). Chong:
“[Carter] gave the farm up, apparently without serious protest.”

Chong: “[T]he [Office
of Legal Counsel] opinions also suggest that presidents may in limited cases
accept certain fixed benefits—as I will explain, these might be pensions from
the U.S. state that used to employ them or money damages from a foreign country
against which, in a past life, they successfully won a judgment. The key is
that those benefits cannot be subject to foreign or domestic government manipulation
or adjustment in connection with the presidential office.” (emphasis added)

Article
III Court: Griffin v. U.S., 935 F. Supp.
1, 6 (D.D.C. 1995) (“It is clear that history, custom and usage support the
theory that proceeds derived from the sale of Mr. Nixon’s presidential papers
do not constitute an emolument. As the Court of Appeals noted, Presidents ‘have
been able to use real leverage in negotiating with respect to the disposition
of presidential papers [created while in office using government property] to extract
from the United States “fancy sums” in the form of lucrative library deals,
while maintaining essential control over the materials.’ 298 U.S. App. D.C. at
259, 978 F.2d at 1279. Indeed, Presidents have used their ‘leverage’ to extract
‘lucrative library deals’while they were still
in office. Similarly, Congress has authorized the purchase of
presidential materials, and has authorized purchase by the Library of Congress.”
(emphasis added)). The key word here is “deal,” which indicates that
consideration is negotiated, and not fixed.

Chong:
“For example, so far as we know, Jimmy Carter did not demand an OLC opinion on
whether he could keep his peanut farm; certainly he did not deploy the Justice
Department to fight in court for it.” (emphasis added)

Tillman:
CREW made a tactical choice to sue Trump in an “official capacity” suit. If the
DOJ was “deployed,” it was because of Plaintiffs, not Trump. See, e.g.,

Monday, July 10, 2017

A threshold issue before turning to the
OLC literature is the confusion created by cherry-picking historical materials
without consideration of their factual context. For example, in its motion to
dismiss, the Justice Department followed the lead of some scholars in pulling
some Supreme Court language that suggests the term “emoluments” applies only to
salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines
emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office”
(emphasis added).

But in Hoyt [v. United States],
the Supreme Court was specifically asked
to decide what constitutes an “emolument
of office” per a statute governing Treasury Department collectors in their
official capacity; the case did not require the Court to consider or rule on
the existence of emoluments of other kinds.[1]

Chong’s
language here is a little difficult to follow. In Hoyt,Plaintiff (the United
States, i.e., the Treasury) brought suit in the Circuit Court for the Southern
District of New York[2]
against the Defendant (the former collector of the port of New York, i.e., Hoyt),
to recover a balance claimed in settlement of his accounts. The United States and
Collector disputed the scope of Hoyt’s fees, commissions, expenses, offsets,
etc.

The
“emolument of office” language to which Chong refers appears in two jury
instructions submitted by the Plaintiff to the trial court. See Instructions VI[4] and VI[6][2]. Hoyt, 51 U.S. at 119. These instructions
were part of a set of 6 instructions submitted by the Plaintiff, along with 18 proposed
instructions submitted by the Defendant. What did the trial court do? The trial
court rejected Defendant’s proposed instructions, and charged the jury under
Plaintiff’s proposed instructions I through V. Id. at 119 & 121. The trial court never used Instructions VI[4]
and VI[6][2]: which use the language
cited by Chong. The Plaintiff prevailed at trial, and the Defendant appealed.
On appeal to the Supreme Court, the Defendant argued that the trial court erred:
by rejecting Defendant’s proposed jury instructions and also erred by charging
the jury with Plaintiff’s instructions I through V. Id. at 126. The Plaintiff defended the jury instructions as given. Id. at 128–29. What was the upshot?
Although Defendant sought a jury instruction using “emolument of office”
language, that is, Instruction VI, the trial court rejected that instruction,
and on appeal to the Supreme Court, neither party argued that the failure to
use Instruction VI was error. So when Chong argues that the Hoyt Court was “specifically asked to
decide what constitutes an ‘emolument of office,’” she was wrong. No one asked.

Once
this error is noticed, the rest of Chong’s analysis falls apart. Chong can
point to other language in Hoyt using
“emolument of office.” It is there, and she takes it to mean that “emolument”
can be used in a context unrelated to “office” and other employment-like relationships. But she offers nothing akin to
proof for that bold claim. It is conceivable that the Hoyt Court added “of office” language to “emolument” because it
believed that there were “emoluments” which were unrelated to office, but it is
also possible that the Hoyt Court
thought all “emoluments” were tied to office-and-employment-type relationships.
Without her initial misreading of Hoyt or
any other substantial reason to believe the former, the rest of her analysis
makes no sense.

It
is not as if the meaning of “emoluments” has not come up before. Chong only
turns to OLC memoranda as guidance because she lacks anything akin to a
judicial decision from the U.S., any state or territory, and any foreign court
in the common law world—any decision asserting that you can have an emolument
unrelated to discharging the duties of office (or an employment-type relationship). That is telling.[3]
And it is not as if commentators have not spoken to this question: the meaning
of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to
employment-type relationships, and it did that when interpreting a 1799 statute
(as subsequently amended).[4]
A 1799 statute’s use of “emoluments” is not obviously so different from how the
same word was used in the Constitution in 1789. More recently, Professor
Kerridge explained: “[W]hile it is perfectly possible to argue that a payment
is a profit but that it is not a profit from an employment, it makes no sense
to argue that something is an emolument but that it is not from an employment.
All emoluments must be from employments,”[5]
and “All emoluments are from employments, or from the equivalent of
employments, that is the essence of
emoluments.”[6]

Seth

Seth Barrett Tillman, A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, New Reform Club (July 10, 2017, 6:29 PM), http://tinyurl.com/y9jb6ve5

** Seth
Barrett Tillman is a member of the faculty in the Maynooth University
Department of Law, Ireland. Tillman blogs at New Reform Club and tweets at @sethbtillman. He filed an amicus in
the ongoing Foreign Emoluments Clause-related litigation in New York. See Motion and Brief for Scholar Seth
Barrett Tillman as Amicus Curiae in
Support of the Defendant, Citizens for
Responsibility and Ethics in Washington v. Donald J. Trump, President of the
United States of America (“CREW v.
Trump”), Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.)
(filed by Professor Josh Blackman & Robert W. Ray, Esq.), Doc. No. 37, 2017
WL 2692500, https://ssrn.com/abstract=2985843.

[2] The
Circuit Court acted as a trial court. Coincidentally, this is the same federal district
in which CREW v. Trump is being
litigated.

[3]See, e.g., Re Legislative Council Election, 22nd Sept. 1988, [1989] 2 H.K.L.R.
194, 217, bit.ly/2syBpZX (explaining that “emoluments of office [are that which
are] received by a person who is an employee from his employer and as a
payment arising out of or in connection with duties performed in the course of
that employment” (emphasis added)).

[4] If one
were to examine statutes contemporaneous with 1789, it becomes fairly clear
that emoluments are one thing and an officeholder’s private commercial
business transactions are an entirely different thing. Compare An Act for Establishing Certain Regulations for the Better
Management of the Affairs of the East India Company, 13 Geo. III c. 63, § 21
(1773) (setting the Governor-General’s salary), with id. § 22 (denying him any other “Emoluments”), with id. § 23 (forbidding the
Governor-General from being “concerned in any Transaction by way of Traffick”).
See generallyAn Act to establish the
Treasury Department, ch. 12,
§ 8, 1 Stat. 65, 67 (1789).

The Reform Club, c. 1915

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